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Denial of paternity based on DNA testing?

Michael Decker
Michael Decker

Is it possible to deny the fatherhood of an Israeli minor?

Denial of paternity based on DNA tests is possible in many Western countries. If the test proves the person married to the mother and listed as the father in official documents is not really the biological parent, he is freed of obligations towards the child. Family law in Israel, meaning both Jewish rabbinical traditions and civil law, will generally not permit such denial (though the results of a paternity test to establish the identity of the father when the couple were not married will be accepted).

Our law firm often deals with paternity testing for the purpose of obtaining Israeli citizenship. This article by attorney Michael Decker will explain the considerations of the Family Court if the ostensible father of a minor child seeks to prove that he is not the parent based on a DNA test.Denial of paternity based on DNA testing?

A bastard in Israel – the official “Mamzer” status.

In contrast to the usage of “bastard” in everyday language, in Jewish tradition, a Mamzer is strictly defined a person born as a result of incest or adultery. A bastard and their descendants cannot marry a Jew who is not a Mamzer or a Ger (someone who converted to Judaism). Israel doesn’t have a civil marriage institution, so anyone considered a bastard according to Jewish law cannot marry within Israel. Of course, they could marry abroad (for example in Cyprus, Paraguay, or El Salvador), but a “bastard”‘s life is not easy in general. The stigma of being a bastard traditionally weighed heavily on Mamzers in Jewish communities.

The arbiters of Orthodox Judaism understood to a certain extent that punishing a child and all their offspring for the sins of their parents was morally inappropriate. Granted, they did not follow the example of Reform Judaism, which officially abolished Mamzer as a status. However, Orthodox tradition seeks to avoid the possible declaration of bastardry as much as possible. Jewish law refers to every child born to a married woman as her husband’s child. This is the case even if the woman was a known adulteress. Furthermore, this is the case even if there is reason to believe that the husband couldn’t possibly conceive the child.

Denial of paternity on the basis of tissue testing causes harm to minors:

Civil law in Israel in general, and the Family Court in particular, follow Jewish traditions in this matter. Tissue testing will no doubt determine who is the “real” father of the child, but the result of a DNA test may cause abnormal and continuous damage to the minor. The child will not only lose their father and family ties, but will also be defined as a bastard according to the Jewish law. Such a status will haunt them and their descendants for many future generations.

As a result, the Family Court does not order tissue tests to deny paternity. Nor does it accept as evidence tissue tests performed without a court order. Many fathers in divorce proceedings seek to avoid paying alimony on the grounds that the child(ren) are not their own. If they are not familiar with Israeli law, they may ask the court to order a DNA test to prove their claim. The court generally considers the interests of the child over the disclosure of the truth or the father’s desire to avoid paying child support. As such, these requests are generally not granted.

When can a test be conducted for the purpose of revoking paternity?

A) When it is in the best interest of the child. This argument is difficult to prove and is rarely brought forth. For example, if the mother’s current husband was in a relationship with her while she was formally married, and the child’s officially registered father is not a healthy presence in their life, then there is minor chance of success.

B) If the child has since come of age and does not object to the test. At this point, denial of fatherhood is essentially a matter of principle – although it has practical implications as far the Mamzer status is concerned.

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Contact our law office in Jerusalem and Tel Aviv for legal information and assistance. We specialize in registering paternity for the purpose of obtaining a status in Israel.

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